Case 1:14-cv-00273-REB Document 20 Filed 11/24/14 Page 1 of 11

Deborah A. Ferguson, ISB No. 5333

Ferguson Durham, PLLC
202 N. 9th Street, Suite 401 C
Boise, Idaho 83702
Tel.: (208) 484-2253
daf@fergusondurham.com
Craig Harrison Durham, ISB No. 6428
Ferguson Durham, PLLC
910 W. Main St., Suite 328
Boise, ID 83702
Tel.: (208) 345-5183
chd@fergusondurham.com
Shannon P. Minter, pro hac vice
Christopher F. Stoll, pro hac vice
National Center for Lesbian Rights
870 Market Street, Suite 370
San Francisco, California 94102
Tel.: (415) 392-6257
sminter@nclrights.org
Attorneys for Plaintiff
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
MADELYNN LEE TAYLOR,
Plaintiff,

Case No. 14-cv-00273-REB

v.
DAVID E. BRASUELL, as Administrator of
the Idaho Division of Veterans Services, in
his official capacity,
Defendant.

MEMORANDUM IN
OPPOSITION TO
DEFENDANTS MOTION
TO DISMISS

Case 1:14-cv-00273-REB Document 20 Filed 11/24/14 Page 2 of 11

I.

INTRODUCTION

Defendants motion to dismiss should be denied. A case is not moot if a federal court can
grant the parties any effective relief. Natl Res. Def. Council v. Jewell, 749 F.3d 776, 782 (9th
Cir. 2014). [T]he party asserting mootness bears the burden of establishing that there is no
effective relief that the court can provide, id. (internal quotation omitted), and must also show
that it is absolutely clear that the allegedly wrongful behavior will not recur if the lawsuit is
dismissed. Conservation Cong. v. United States Forest Serv., 720 F.3d 1048, 1053 (9th Cir.
2013) (internal quotation omitted). Defendant cannot meet that demanding standard here.
Plaintiff Madelynn Lee Taylor has not obtained the relief she seeks. Defendant has
placed the remains of Ms. Taylors late wife, Jean Mixner, in the Idaho State Veterans
Cemetery; however, Ms. Taylor brought this lawsuit to obtain the peace of mind and security of
knowing that Ms. Mixners remains will not ever be disturbed or removed from the Veterans
Cemetery and that, upon her own death, her remains will placed alongside Ms. Taylors in
perpetuity. Ms. Taylor can obtain that relief only through a binding judgment from this Court.1
This case is not moot because the Court remains empowered to grant effective injunctive
relief to Ms. Taylor. If it does not do so, it leaves open the possibility that once Ms. Taylor dies,
Defendant will refuse to honor her burial wishes, leaving Ms. Taylors estate without any way to
enforce her burial request, as any cause of action to do so abates upon her death.
Ms. Taylors concerns that this may occur are neither abstract nor hypothetical, as both
Governor Otter and the Idaho Attorney General are vigorously working to reverse the decision in
Latta v. Otter, Nos. 14-35420, 14-35421, 12-17668, __ F.3d __, 2014 WL 4977682 (9th Cir. Oct.

1
As a procedural matter, it bears mention that Defendant did not respond to the original
2

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7, 2014). Defendant has not met his burden of showing that it is absolutely clear that he will
respect Ms. Taylors marriage regardless of any future developments, nor can he credibly do so
when the states actions belie that very claim. Conservation Cong., 720 F.3d at 1053. Ms.
Taylor is entitled to the full scope of the relief she seeks, and this case is not moot so long as she
has not obtained that relief.
II.

DISCUSSION
A. The Case Is Not Moot Because Ms. Taylor Does Not Have the Full Relief
Requested.

The burden of demonstrating mootness is a heavy one. Nw. Envtl. Def. Ctr. v. Gordon,
849 F.2d 1241, 1244 (9th Cir. 1988). In order to prevail on his motion, Defendant must show that
the parties lack a cognizable interest in the outcome such that no present controversy as to
which effective relief can be granted remains. Nw. Envtl. Def. Ctr., 849 F.2d at 1244 (internal
quotation omitted). It is not enough for Defendant to show that plaintiff has obtained some of the
relief sought by her complaint. Instead, Defendant must demonstrate that the Court lacks the
power to grant Ms. Taylor any effective relief at all. Id. at 1244 (internal quotation omitted)
(emphasis in original). Defendant must also show with evidence that it is absolutely clear that the
allegedly wrongful behavior will not recur if the lawsuit is dismissed. Conservation Cong., 720
F.3d at 1053 (internal quotation omitted). Defendant cannot meet either of those burdens here,
where Ms. Taylor has not obtained the full relief she seeks, and where state officials, including
those with significant control over the Defendant in this case,2 are actively seeking to reverse the
precedent upon which Ms. Taylors claim relies.

2 The Veterans Cemetery is part of the executive branch under the direction and control of
the Governor. See I.C. 65-108 (The operation, management and control . . . of the . . . state
veterans cemetery is hereby vested in the division of veterans services.); I.C. 65-201 (in the
department of self-governing agencies the division of veterans services. . . . shall be headed by an
3

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Defendant cannot establish [ ] that there is no effective relief that the court can provide.
Natl Res. Def. Council, 749 F.3d at 782 (internal quotation omitted). Ms. Taylor has received only
part of the relief she seekshaving Ms. Mixners remains placed at the Veterans Cemetery. Ms.
Taylors complaint does not seek only to have her deceased spouse interred at the Veterans
Cemetery. She prays for an enforceable order that will give her the comfort and dignity of
knowing that she will be able to honor her promise to her spouse that they will be interred
together in a single columbarium at the Veterans Cemetery, and left there undisturbed. See Am.
Compl., Dkt. 13, 25. As stated in her complaint, Ms. Taylor seeks a permanent injunction
directing Defendant to approve her Pre-registration Application to be interred upon her death with
her deceased spouse, Ms. Mixner, and to direct him to approve, upon Ms. Taylors death, her
internment, together with her spouse at the Idaho State Veterans Cemetery. Id. at 8 (emphasis
added); see also id. at p.14, Sec. IV(A).
As long as there is the possibility that the Court can provide Ms. Taylor with any relief, this
case is not moot. Nw. Envtl. Def. Ctr., 849 F.2d at 1244. This Court retains the power to enjoin the
Defendant from renewing its rejection of Ms. Taylors request that she and her deceased spouse be
interred together in perpetuity in the Veterans Cemetery, including by moving Ms. Mixners ashes
to another location in the cemetery when Ms. Taylor passes away. Because Ms. Taylor has not yet
secured the full relief she sought, and because this Court retains the power to grant that relief, the
case is not moot.

administrator who shall be appointed by the governor); I.C. 67-2601 (the department of selfgoverning agencies. . . . shall . . . be an executive department of the state government.).

4

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B. The Case Is Not Moot Because the States Wrongful Acts Could Recur.
Defendant also cannot show that it is absolutely clear that the allegedly wrongful behavior
will not recur if the lawsuit is dismissed.

Conservation Cong., 720 F.3d at 1053 (internal

quotation omitted). Here, Defendants sole evidence of mootness is a brief declaration averring
that Ms. Mixners remains were interred at the Veterans Cemetery on October 28, 2014. Decl. of
James Earp, Dkt. 18-2, at 5. Defendant concedes that the ruling in Latta v. Otter was the sole
reason he reversed course and allowed Ms. Mixners remains to be interred. Id. At the same time,
state officials are actively seeking to reverse that decision. See Latta v. Otter, Nos. 14-95420, 1495421, Dkt. 201-1, Pet. of Def.-Appellant Governor C.L. Butch Otter for Rehg en Banc (filed
Oct. 21, 2014); see also Sophia Miraglio, Idaho Governor Otter Vows to Continue Fighting
Against

Gay

Marriage,

KLEWTV.com

(Nov.

10,

2014,

5:22

PM),

http://www.klewtv.com/news/local/Same-sex-marriage-update-282214131.html.
Under these circumstances, where Defendant is unwilling to enter into a binding agreement
to honor Ms. Taylors request to be interred with her spouse in perpetuity, that declaration falls far
short of making it absolutely clear that the allegedly wrongful behavior will not recur if the
lawsuit is dismissed. Conservation Cong., 720 F.3d at 1053 (internal quotation omitted). To the
contrary, the declaration serves only to document the current state of affairs. It provides no
assurance that Defendant will not renew his initial refusal to permit the spouses to be interred
together, including by removing Ms. Mixners ashes to a different location after Ms. Taylors
death. Defendant has not met his heavy burden, Conservation Cong., 720 F.3d at 1053, and Ms.
Taylor continues to be denied the relief she sought in this suit: the security and peace of mind of
being assured that she and her deceased spouse will be interred together in the Idaho State
Veterans Cemetery in perpetuity.

Case 1:14-cv-00273-REB Document 20 Filed 11/24/14 Page 6 of 11

Ms. Taylors concern that Defendant may renew his previous refusal to permit the spouses
to be interred together is well founded. State officials have vigorously challenged the courts
invalidation of the states ban on recognizing the marriages of same-sex couples at every level and
continue to do so. The state cannot have it both ways, arguing here that the Ninth Circuits
decision in Latta v. Otter is final and moots Ms. Taylors case, while simultaneously seeking to
challenge and reverse it. Ms. Taylor did not file the present lawsuit until Defendant refused to
respect her marriage after the District Court in Latta had already held Idahos marriage laws
unconstitutional. Compare Latta v. Otter, No. 1-13-cv-00482-CWD, 2014 WL 1909999 (D. Idaho
May 13, 2014), with Exhibit A to Decl. of James Earp, Dkt. 18-3, at 1 (June 3, 2014). After the
Ninth Circuit upheld the District Courts decision, the Latta defendants sought to block its
enforcement, seeking a stay both from the Ninth Circuit and from the U.S. Supreme Court. See
Otter v. Latta, No. 14A374, Order Den. Appl. for Stay (U.S. Oct. 10, 2014), Latta v. Otter, No. 1435420, Dkt. 189, Order Recalling Mandate (9th Cir. Oct. 8, 2014), Latta v. Otter, No. 14-35420,
Dkt. 11, Order Granting Mot. To Stay (9th Cir. May 20, 2014).
On October 21, 2014, Latta defendant Governor Butch Otter filed a petition asking the
Ninth Circuit to rehear the case en banc. Latta v. Otter, Nos. 14-95420, 14-95421, Dkt. 201-1, Pet.
of Def.-Appellant Governor C.L. Butch Otter for Rehg en Banc (filed Oct. 21, 2014). Attorney
General Lawrence Wasden, who represents intervenor-defendant the State of Idaho in Latta, has
publicly stated that he will petition the Supreme Court for a writ of certiorari. See Sophia Miraglio,
Idaho Governor Otter Vows to Continue Fighting Against Gay Marriage, KLEWTV.com (Nov.
10,

2014,

5:22

PM),

http://www.klewtv.com/news/local/Same-sex-marriage-update-

282214131.html. These actions demonstrate that [t]here is no mere risk that [Defendant] will
repeat [his] allegedly wrongful conduct; [he] has already revealed that he will do so if given the

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opportunity.

Ne. Fla. Chapter of Associated Gen. Contractors of Am. v. City of Jacksonville, 508

U.S. 656, 662 (1993). To prevent this harm from recurring, especially after Ms. Taylors death
when her estate will be without a remedy, Ms. Taylor is entitled to a judgment that determines the
parties rights and obligations and precludes Defendant from changing course. Id.
Kittel v. Thomas, 620 F.3d 949 (9th Cir. 2010), which Defendant relies upon, does not
support a finding that this case is moot. In Kittel, a prisoner had obtained an early release. He then
filed an action seeking a protective ruling as to the applicability of Arrington v. Daniels, 516 F.3d
1106 (9th Cir. 2008), a recent Ninth Circuit precedent to his case, in order to support a future . . .
motion for a reduction in his term of supervised release. 620 F.3d at 951. The Court held that
because Arrington was binding authority in the Ninth Circuit, the Kittel case was moot, as there
was no question that the ruling in Arrington would govern that future motion. Id. The plaintiffs
unsupported fear that the government might argue before the sentencing court that Arrington is
somehow not good law was not sufficient to show that the claim was not moot as there was no
dispute that Arrington was binding authority in the Ninth Circuit. Id.
This case differs from Kittel in two critical respects. First, in Kittel, there was no question
that the plaintiff in that case would be able to vindicate his rights under Arrington by bringing a
motion to reduce his sentence. In contrast here, Ms. Taylor needs relief now, during her lifetime,
because under Idaho law, civil rights claims brought under 42 U.S.C. 1983 abate upon death. See
Evans v. Twin Falls County, 796 P.2d 87 (Idaho 1990) (holding that civil rights claims do not
survive plaintiffs death under Idaho law); Robertson v. Wegmann, 436 U.S. 584 (1978) (holding
that the survivability of civil rights claims are determined by state law, even where state law would
abate claim); see also Van Orden v. Caribou County, No. 4:10-CV-385-BLW, 2011 WL 841438
(D. Idaho Mar. 4, 2011) (holding that under Idaho law death abates a civil rights claim unless the

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constitutional violation caused the persons death); Anderson v. Corr. Med. Servs., No. CV 02-155S-LMBm 2005 WL 3263896, at *3 (D. Idaho Nov. 18, 2005) (Idaho is in the small minority of
states that allow a civil rights claim to abate based upon the non-survivability rule found in
common law.).
As the Court is aware, and Defendant does not dispute, Ms. Taylor is elderly and faces
multiple and significant health challenges. She recently had surgery to treat her cardiovascular
disease and suffers from a serious respiratory condition. See Am. Compl., Dkt. 13, 3. Her
attempt to pre-register for interment at the Veterans Cemetery was, as it is for many, precipitated
by a keen awareness of her own mortality. If Ms. Taylor is not able to resolve this litigation with a
final judgment at this time, and Defendant revives his refusal to recognize her marriage to Ms.
Mixner after her death, that discrimination will evade review entirely. Even though Latta v. Otter
will be binding precedent in Idaho, there will be no one with standing to enforce it against
Defendant with respect to Defendants obligation to permit the deceased spouses to be interred
together in the Veterans Cemetery in perpetuity. Without an enforceable order in place before her
death, Ms. Taylor cannot have the certainty of knowing during her lifetime that upon her death she
will be interred alongside her wife.
The possibility that Defendant could renew his discrimination against Ms. Taylor after her
death, leaving her estate without a legal remedy, brings this case squarely within a long-standing
exception to the mootness doctrine: the harm to Ms. Taylor is capable of repetition, yet evading
review. Honig v. Doe, 484 U.S. 305, 318 (1988) (internal quotation omitted). When a defendant
has ceased engaging in the complained-of behavior, the case is not moot, id. at 333, if dismissing
the action could allow for the possibility that the harm will reoccur, yet any resulting claim . . .
will surely evade . . . review. Id. at 318, 323; see also Olmstead v. L.C. ex rel. Zimring, 527 U.S.

Case 1:14-cv-00273-REB Document 20 Filed 11/24/14 Page 9 of 11

581, 594 n.6 (1999) (holding that action by plaintiffs who sued over defendants failure to treat
them in community-based programs was not moot even though they were currently receiving
treatment in community-based programs due to the possibility that defendants could place them in
a different program in the future). The risk that Defendant will refuse to honor Ms. Taylors
wishes to be interred alongside her deceased wife in perpetuity, and that the resulting harm will
evade review due to her death, precludes mootness and requires the court to adjudicate the merits
of Ms. Taylors claim now. Because civil rights actions abate upon death under Idaho law, that is
the only way to ensure that Ms. Taylor can obtain the relief she has requested, including the
incalculable peace of mind and security of knowing that Defendant must honor her request that she
and her deceased spouse will be interred together after her death.
Second, in Kittel, the legal dispute raised had already been conclusively resolved by
another case.

620 F.3d at 951 (emphasis added).

No one, including the Kittel government

defendants and the Arrington government defendants, disputed that the Ninth Circuits decision in
Arrington was the final word in that case. By contrast, here the Latta government defendants have
vowed to do everything in their power to reverse the Ninth Circuits decision and are currently
challenging it. The states own actions in the Latta case demonstrate that, unlike the situation in
Kittel, there is a continuing and justiciable controversy between the parties in this case about their
legal obligations with respect to Idahos marriage laws.
Nor do the additional cases cited by Defendant support a finding of mootness. Gator.com
Corp. v. L.L. Bean, Inc., 398 F.3d 1125 (9th Cir. 2005) (en banc), and Steffel v. Thompson, 415
U.S. 452(1974), were held to be moot because the plaintiffs in those cases no longer wishe[d] to
engage in the activity concerning which [they] initially sought . . . relief. 398 F.3d at 1130. That

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rationale for mootness is inapplicable to this case. Ms. Taylor still very much wishes to share her
final resting place with her wife.
III. CONCLUSION
The Defendant is offering in essence a "handshake" deal to this Idaho veteran, rather than a
final judgment order. Ms. Taylor has no reason to find reassurance in the Defendant's
unenforceable assertion that her burial wishes will be honored. Rather, she seeks an enforceable
final judgment order, to which she is entitled. This Court's order is the only remedy that will
ensure the state will respect her rights, as an honorably discharged veteran, to the burial she seeks.
For the foregoing reasons, Ms. Taylor respectfully requests that the Court deny Defendants
motion to dismiss.
DATED: November 24, 2014

Respectfully submitted,
s/ Deborah A. Ferguson
Deborah A. Ferguson, ISB No. 5333
Ferguson Durham, PLLC
202 N. 9th Street, Suite 401 C
Boise, Idaho 83702
Tel.: (208) 484-2253
daf@fergusondurham.com
Craig Harrison Durham, ISB No. 6428
Ferguson Durham, PLLC
910 W. Main Street, Suite 328
Boise, Idaho 83702
Tel.: (208) 345-5183
chd@fergusondurham.com
National Center for Lesbian Rights
Shannon P. Minter, pro hac vice
Christopher F. Stoll, pro hac vice
870 Market Street, Suite 370
San Francisco, California 94102
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Tel.: (415) 392-6257

sminter@nclrights.org
cstoll@nclrights.org
Attorneys for Plaintiff

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